Published on 21 March 2022

SECOND SECTION

Application no. 58901/19 Naci KURKUT against Turkey and 6 other applications (see list appended) communicated on 3 March 2022

SUBJECT MATTER OF THE CASE

The applications concern the refusal of the authorities to appoint the applicants, who fulfilled all the formal conditions, to public service on account of a negative security clearance. All applicants complain of an infringement with their right to a fair trial on account of the alleged failure of the administrative courts to carry out an effective judicial review. As the information and the accusations contained in the security clearance documents were not disclosed to them, they argue that they were unable to contest their veracity in the course of the administrative proceedings and that the court decisions did not contain relevant and sufficient legal reasons.

The applicants in application nos. 58901/19, 14944/20, 29101/20, 28956/21 further complain of the arbitrary nature of negative security clearances in so far as the conclusions therein were based on the alleged connections or activities of their close relatives with a terrorist organisation and contained no objective assessment in respect of themselves .

The applicant in application no. 29101/20 further complains under Articles 6 § 2 and 7 of the Convention that the administrative courts failed to observe respect for his right to presumption of innocence because they casted doubt on his established innocence by stating that he had been previously acquitted of a terror-related offence solely on account of lack of evidence.

The applicants finally point out that despite the law on security clearance was struck down as unconstitutional by the Constitutional Court in its decision of 29 July 2019 for not fulfilling, inter alia , the requirement of foreseeability in abstractive review proceedings, the same court did not examine their individual appeals on the merits.

QUESTIONS TO THE PARTIES

COMMON QUESTION

In the light of the principles established in Pişkin v. Turkey (no. 33399/18, §§ 120-153, 15 December 2020), did the domestic courts carry out an effective judicial review of the refusal to appoint the applicants to civil service in accordance with Article 6 § 1 of the Convention? In particular, were the principle of equality of arms; the right to an adversarial hearing; and the right to a reasoned judgment respected in the impugned proceedings?

CASE SPECIFIC QUESTION IN RESPECT OF APPLICATIONS NOS 58901/19, 14944/20, 29101/20 and 28956/21

Can the conclusions contained in the security clearance and the relevant judicial decisions endorsing them be regarded as arbitrary or manifestly unreasonable?

CASE SPECIFIC QUESTIONS IN RESPECT OF APPLICATION NO. 29101/20

Has the applicant exhausted all domestic remedies in respect of his Article 6 §2 complaint? In particular, did he raise that complaint in substance before the Constitutional Court?

Has there been a violation of that provision on account of the reasoning and wording of the administrative court decision in the applicant’s case (see, among others, Vassilios Stavropoulos v. Greece , no. 35522/04, §§ 38-40, 27 September 2007)

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

58901/19

Kurkut v. Turkey

30/10/2019

Naci Kurkut 1985 Diyarbakır Turkish

Sedat Ä°leÅŸmek

2.

59988/19

Kesgin v. Turkey

06/11/2019

Şükran Kesgin 1990 Van Turkish

Emine

Kesgin

3.

14944/20

Doğan Özdemir v. Turkey

17/03/2020

Zeycan Doğan Özdemir 1986 Lorient Turkish

Mehmet Kısayol

4.

23565/20

Dolgun Kılıç v. Turkey

03/06/2020

Bahar Dolgun Kılıç 1989 Manisa Turkish

5.

29101/20

Tetik v. Turkey

29/06/2020

Agit Tetik 1992 Şırnak Turkish

Rezdar Çoban

6.

42116/20

Tekin v. Turkey

07/09/2020

Baran Tekin 1991 Manisa Turkish

Nergiz Tuba Aslan

7.

28956/21

Tanrıkulu v. Turkey

20/05/2021

Mehmet Tanrıkulu 1987 Diyarbakır Turkish

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